One reporter still faces Inauguration charges in D.C.

Six months after the Presidential Inauguration, one reporter still faces charges springing from the mass arrests of protesters in downtown Washington, D.C., that day.

Aaron Cantu, a freelance writer and now a staff reporter with the Santa Fe Reporter, was among 36 defendants arraigned before the Washington, D.C., Superior Court on June 9 after being arrested during the protests on January 20. Cantu, who was working as a freelance journalist at the time of the protests, faces eight felony charges, including inciting to riot, rioting, conspiracy to riot, and five felony destruction of property charges. He has pleaded not guilty. If convicted, however, he could face up to 75 years in prison.

Cantu was one of more than 200 people arrested in connection with serial Inauguration Day protests and counter protests at several locations across the District of Columbia. During the protests, police used a controversial tactic, called “kettling,” in which officers create barricades to keep the protesters enclosed. In one instance, the police kept protesters and several journalists, including Cantu, in a penned-in area for hours before arresting the majority of them and taking them to booking.

On June 21, 2017, the American Civil Liberties Union of the District of Columbia filed a lawsuit against the District of Columbia Metropolitan Police Department (MPD) alleging mistreatment of four individuals during the Inauguration protests. Among the plaintiffs in the case is Shay Horse, a photojournalist who was arrested in connection with the protest but whose charges were dropped in February. The complaint alleges that “while detaining demonstrators for hours, police fired pepper spray, tear gas, and flash-bang grenades at crowds of demonstrators, journalists, and legal observers, frequently without warning or justification… police held detainees for hours without food, water, or access to toilets; handcuffed detainees so tightly as to cause injury or loss of feeling; and subjected some detainees to manual rectal probing.”

Scott Michelman, a senior staff attorney at the ACLU who is representing the plaintiffs in their suit against MPD, has criticized MPD’s actions during the Inauguration protest arrests. “The DC police did not make any efforts to single out any people who may have broken the law that day from innocent journalists,” said Michelman. He added, “Actions like MPD’s that punish journalists for being near the action will inevitably chill freedom of the press and, with it, First Amendment rights not only of the journalists themselves, but of all of us.”

Journalists must be free to report on protests in order to inform the public about newsworthy events and matters of public concern. Yet journalists who report on protests are often targeted for arrest. For example, at least 26 individuals who identified themselves as journalists were arrested while reporting on the 2011 Occupy Wall Street movement. More recently, 10 individuals covering the 2016 and 2017 protests against the Dakota Access Pipeline in Standing Rock, North Dakota faced charges for their activities while covering the protests. These and other arrests deter journalists from covering protests, and the ultimate losers are members of the public who are deprived of access to information.

The arrests of Cantu and other individuals covering the Inauguration Day protests bring to the fore issues and risks that journalists may confront when they report on site at protests. There are few specific legal protections for journalists in gathering information. In the 1972 case Branzburg v. Hayes, the Supreme Court recognized that “without some protection for seeking out the news, freedom of the press could be eviscerated.” However, the Court did not specify what these protections should be, and, in most situations, reporters have no special legal rights beyond those of the general public.

However, just as members of the public can lawfully observe public protests, reporters must be permitted to cover protests without fear of arrest. Police officers and other public officials must recognize that reporters need to stay close to the action in order to obtain the most accurate and objective story. As a result, they may be nearby when protesters begin to break the law. Mere proximity to law breaking, however, does not mean that reporters should be considered participants or swept up in mass arrests.

In Cantu’s case, the indictment shows that while he was close to the events, he did not participate in any violent actions. Over and over again, the indictment states that Cantu did no more than move with the protestors through the city streets as others engaged in various violent or illegal actions. For example, the indictment states that “individuals participating in Black Bloc broke the windows of an Au Bon Pain restaurant located in the 1100 block of 13th Street NW, as Aaron Cantu and others moved south on 13th Street NW.” Similarly, the indictment states that “defendants Joshua Barnak and Kimberly Cain and other individuals participating in the Black Bloc broke the windows of a limousine . . . and assaulted the limousine driver as he stood near the vehicle, as Aaron Cantu and others moved west on K Street NW.” These and other statements demonstrate that although Cantu stayed near the events of the protest consistently — as any journalist covering a protest would do — there is no evidence or indication based on the government’s facts that he actually participated in the protests or committed any crimes.

In addition to staying close to protest activities, journalists covering protests may not want to stand out from the crowd, for safety or other reasons. As a result, they may not prominently identify themselves as members of the press at protests by obviously displaying credentials or other methods. Similarly, reporters may bring equipment such as gas masks or a first aid kit to a protest. Attempts to blend into the crowd and to protect themselves do not mean that reporters are participants in a protest.

As a result, evidence offered in the indictment that Cantu may have been dressed similarly to protestors or carried certain safety equipment does not demonstrate that he participated in the protest. The indictment accuses Cantu of using “a tactic called the ‘Black Bloc’ in which individual defendants wore black or dark colored clothing, gloves, scarves, sunglasses, ski masks, gas masks, goggles, helmets, hoodies and other face-concealing and face-protecting items ….” Similarly, the indictment accuses Cantu “and other individuals participating in the Black Bloc” of bringing “face masks, gas masks, and goggles to eliminate or mitigate the effectiveness of crowd control measures that might be used by law enforcement.” But wearing specific clothing should not be considered evidence of guilt. In addition, gas masks and other face-protecting items are legitimate tools journalists may use to protect against pepper spray and tear gas.

Finally, while many journalists and news outlets emphasize objectivity, others may choose to advance a certain perspective through their reporting. A reporter whose views are empathetic with those of protesters may nevertheless attend a protest as a journalist, not as a participant. In short, law enforcement officials must be mindful of journalists’ proper role and must not detain them for merely gathering the news at protests.

Of course, just as with members of the public, journalists cannot break the law. There is a point at which peaceful and legal behavior becomes illegal. Failure to obey direct police orders and other activities, such as destruction of property, are illegal in any context, including for reporters covering protests.

With this information in mind, reporters covering protests should take precautions to avoid arrest or be prepared with the materials that could help speed up a booking if they are arrested. Journalists should always carry credentials and a government-issued photo ID. While credentials do not immunize journalists from arrest, they are a useful tool in explaining to police why they are on the scene.

In additions, journalists should secure their phones. Phones have a vast amount of personal information, including call logs, GPS location services, search history and passwords. Communications should be handled through secure applications that encrypt all the data sent and received.